Time to Shut Down the Cambodia Special Tribunal?

by Peggy McGuinness

I have not been following the work of the Cambodia special chambers, which is probably why I found these views by James Bair (blogger, loyal OJ reader and soon-to-be JD from Northeastern Law School) all the more informative and interesting. Bair is a former legal intern at the Extraordinary Chambers in the Courts of Cambodia (ECCC) and has followed the tribunal’s work closely since its inception. He writes, “In light of the continuing allegations of corruption, and after the ECCC has continuously failed to provide the fundamentals of a fair trial at the Khmer Rouge Tribunal, I am reluctantly calling for the Court to be closed.” Bair raises important questions and critiques of the hybrid model of international criminal justice. Here’s an excerpt from his blog post, which can be found in full here:

During the Winter of 2007-2008, I worked as an intern in the Victims
Unit at the ECCC. I had the privilege of being there just as the Unit
first went into operation, and of seeing the first victims in the
history of international criminal law who were allowed to participate
as partie civille – to appear before the Court to tell their stories
and demand justice for themselves and the nearly two million people
slaughtered by the Khmer Rouge. I have written an article arguing that
the ECCC’s approach to victims offers a model for a more meaningful
form of international criminal tribunal. For the curious, the article
also offers the non-web-based citations for the arguments I lay out
below. My time working with victims at the ECCC, hearing their stories
and watching the hope with which they looked to the Tribunal’s work
was one of the most formative experience of my life. It reaffirmed all
that international justice could do for a country, even decades later,
to promote healing, and end impunity for some of the worst killers of
our time.

But today, I have finally reached a conclusion.

For the sake of the Cambodian people, who deserve more than a
billion-dollar show trial, and for the United Nations, which cannot
afford to continue lending its approval to illegitimate, ineffectual
cosmetic efforts, the ECCC should be closed. Any verdict this Court
enters will only provide fodder for those who claim that International
Justice does not and cannot work.

Last week, the Cambodian co-prosecutor (a peculiar, parallel
innovation of the ECCC), Chea Leang, tried to block the UN side of the
Court from investigating more than the five suspects currently in
custody. The decision smacked of political motivation and seemed
designed to prevent investigation of high-ranking members of
Cambodia’s modern-day government who were, themselves, Khmer Rouge
leaders. Worse, the Co-Prosecutor did not even attempt to justify her
opposition based upon principles of international law. Rather, she
argued that:

“investigations should not proceed on account of (1) Cambodia’s past
instability and the continued need for national reconciliation, (2)
the spirit of the agreement between the United Nations and the
Government of Cambodia (“Agreement”) and the spirit of the law that
established this court (“ECCC Law”), and (3) the limited duration and
budget of this court.”

An actual legal argument would run directly counter to her assertions.
The law establishing the ECCC cites as its purpose

“…to bring to trial senior leaders of Democratic Kampuchea and those
who were most responsible for the crimes and serious violations of
Cambodian penal law, international humanitarian law and custom, and
international conventions recognized by Cambodia, that were committed
during the period from 17 April 1975 to 6 January 1979.”

This seems certainly to encompass the idea that, if further suspects
who were “most responsible,” remain at large, then it is the Court’s
job to bring them to justice.

Therefore, the “spirit” of the law to which the Cambodian
Co-Prosecutor has referred is more likely the spirit that has informed
the Court’s work since the early stages of negotiation – to allow the
Cambodian government to conduct a show trial, for its own political
benefit, and with the support, approval, and funding of the United
Nations.

5 Responses

Peggy,

Perhaps Opinio Juris could solicit the views of those contributing to the Khmer Rouge Accountability series over at IntlawGrrls. Indeed, perhaps we could have here a mini-forum of sorts by way of comments on and responses to Bair’s argument. I suspect all parties would benefit immensely from such an exchange.

So, let’s solicit the views of such august international law scholars and practitioners as Beth Van Schaack, Ann Heindel, Jaya Ramji-Nogales, and Diane Marie Amann (among others) by way of taking advantage of their enviable pool of knowledge, experience and expertise on this topic. I’ll do my part by sending a copy of this suggestion to Diane and see what she thinks.

I find it interesting that you give creedence to the opinion of a third-year law student who spent a few months working with one component of the court. His comments and your decision to quote them here all show such a lack of understanding.

Unfortunately, the comments forum for this post is set to expire soon, but I would invite you to elaborate on any aspects of my argument with which you disagree, either here or on my blog. As I say, this is something I have followed closely, both as a scholar and during my time at the Tribunal. While I confess to not having yet earned my J.D., I question whether that actually bears upon the substance of my analysis.

I share what I assume is your hope that the Tribunal’s structural impediments can be overcome, and that international standards of justice can still be obtained. I would welcome any evidence or arguments about the Tribunal that you believe would contradict or complicate my conclusion.

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